Constitution Watch 7-2017

CONSTITUTION WATCH 7/2017

[16th November 2017]

Where to Now? The Constitutional Options

Introduction

Yesterday Zimbabweans woke to find that the Defence Forces had taken control of the country, avowedly to purge the ruling party of criminals who had fostered division and misgovernment. The military spokesman disavowed any idea that they were taking over the government: what they were doing, he said, was to pacify a degenerating political, social and economic situation which, if not addressed, might result in violent conflict [link]. The statement by the Commander of the Defence Forces which preceded the takeover emphasised the role of the Defence Forces in upholding the Constitution, suggesting that the military wants to abide by it so far as possible [link].

At the time of writing there was no firm indication of what the military commanders intended to do, and in this Constitution Watch we shall set out the constitutional options available to them.

1. Replacing President Mugabe with a New President

If the military decide that the best way forward for the country is to replace Mr Mugabe with a new President, the steps open to them are as follows:

· Persuade Mr Mugabe to appoint a new Vice-President, assuming the military commanders do not want a new government headed by the current Vice-President. Mr Mugabe would do this in terms of paragraph 14 of the Sixth Schedule to the Constitution.

· Persuade Mr Mugabe to resign – perhaps easier said than done. The President resigns by written notice to the Speaker of Parliament under section 96 of the Constitution, and the Speaker must give public notice of the resignation within 24 hours. Upon his resignation the Vice-President will take over as Acting President under paragraph 14(4) of the Sixth Schedule to the Constitution until the ruling party endorses him or nominates someone else as substantive President, which it will have to do within 90 days under paragraph 14(5).

· Persuade Mr Mugabe, before resigning, to dismiss his current Cabinet and appoint new Ministers. This sounds odd – why should a President who is going to step down appoint a new Cabinet? – but it is necessary because under section 100 of the Constitution an Acting President [which the Vice-President will become when Mr Mugabe goes] needs the approval of a majority of existing Ministers before he or she can dismiss Ministers or appoint new ones. So because of this constitutional quirk Mr Mugabe will have to appoint at least some of his successor’s Ministers.

2. Allowing President Mugabe to Continue in Office

This is a less plausible option. The military spokesman stated that their intention was to return Zimbabwe to a dispensation which allows for investment, development and prosperity, and a government headed by Mr Mugabe is unlikely to achieve any of that. Nevertheless, if the military wants to keep Mr Mugabe in office, though with a clearly nominated successor and with new Vice-Presidents and Ministers, they would need to persuade Mr Mugabe to take the following steps:

· To dismiss the current Vice-President, Mr Mphoko, assuming the military do not want the possibility of a future government headed by him. The President can dismiss Vice-Presidents at any time because they hold office at the President’s pleasure [paragraph 14(2) of the Sixth Schedule to the Constitution].

· To appoint a new Vice-President; the President can appoint up to two of them under paragraph 14(2) of the Sixth Schedule. He could also, of course, revoke such an appointment whenever he wished, and might well be inclined to do so if the appointment was made under duress.

· To nominate the new Vice-President, or one of them if there are two, as his successor in the event of his death or retirement. This nomination would not be legally binding but would have great political significance. It could, however, be revoked by the President whenever he felt he could do so with impunity.

· To appoint new Ministers under section 104 of the Constitution. Ministers can be removed from office at any time under section 108, so replacing all or some of his existing Ministers will not pose any constitutional problem.

It must be noted that the President is head of State and Government [section 89 of the Constitution] and that when exercising many of his functions he is not bound to act on the advice of his Ministers [section 110(2) and (6)]. Hence even if the military gets Mr Mugabe to agree to exercise only limited powers, or do only what the Cabinet advises him to do, it will be no more than a gentlemen’s agreement.

3. Transitional Government or Government of National Unity

This is an option put forward by several groups. It is not really an alternative to the two options set out above, because a transitional or unity government could be headed by Mr Mugabe or by his successor as acting President or President. If a transitional or unity government is to represent all shades of opinion and interests, many of its members will have to be drawn from outside Parliament.

Vice-Presidents

A new President would face no restrictions in appointing Vice-Presidents, but an Acting President would need to get the agreement of a majority of his Cabinet for the appointment of a Vice-President [section 100(2) of the Constitution].

Ministers

Under section 104 of the Constitution, Ministers must be Members of Parliament but the President or an acting President is allowed to appoint up to five of them, chosen for their professional skills and competence, from outside Parliament. If more than five such Ministers are to be appointed there are two options:

1. Members of Parliament may be persuaded to vacate their seats to allow prospective Ministers to be elected in their stead.

2. Section 104 of the Constitution could be amended to increase the number of non-parliamentary Ministers who can be appointed. This would need a two-thirds majority in the Senate and the National Assembly.

Postponement of Elections

Whatever the composition of the next Government, it is quite possible that the general election scheduled for next year will be postponed. The current political turmoil means that the ruling party will be unable to contest an election soon, and opposition parties and coalitions are in almost perpetual disarray. Voter registration is not going smoothly and a delimitation of wards and constituencies has not even been attempted. The Electoral Act remains unaligned to the Constitution. For all these reasons there is likely to be substantial support for postponing the election.

This will need an amendment to the Constitution, because under section 158 general elections must be held every five years; the deadline for next year’s election is August. As stated above a Constitutional amendment will have to be passed by a two-thirds majority in the Senate and the National Assembly, but if all parties agree on the postponement such a majority may not be too difficult to secure.

Observance of Detained Persons’ Constitutional Rights

As we pointed out at the beginning of this Constitution Watch, the military have emphasised their respect for the Constitution. This respect must extend to the whole Constitution, including those provisions that protect the rights of arrested or detained persons. The military authorities must therefore ensure that Ministers and party members who have been detained are accorded their rights under section 50 of the Constitution, in particular that they are: